Simplicity is Best

[G26ster]

I've spent the vast majority of my working life, until retirement, in an industry under federal regulation. All of the rules, restrictions, and requirements came through regulation, and congress had nothing to do with it. I believe that it will be the same in the weeks, months, and years to come for firearms. I worry far less about what congress will or won't do, than I do about what government bureaucrats will do.

exactly my point

the executive branch inacting a form of legislation without representation

I think you will find, upon further review, that each agency promulgates its regulations under specific statutory grants of authority approved by Congress. "The Secretary shall [to thus and so]", or 'such forms and details as the Secretary shall prescribe..." The Internal Revenue Code was passed by Congress. The Director of Internal Revenue drafts and publishes the Regulations which execute the statutory provisions. Each agency has similar grants of authority to regulate, DEA, FCC, HEW, HHS, DOJ etc.

This is true, but congress does not approve or disapprove each specific regulation that each department chooses to promulgate. I think the key phrase is, "as the Secretary shall prescribe." Each department proposes rules and publishes them under a NPR (Notice of Proposed Rulemaking), and there is a response time. In the end, it is the department that decides whether or not the rule is adopted. Of course rules can be challenged, but unless the challenge is successful, it remains the rule. I believe any new rule restricting 2A rights will be challenged, but in the end, the challenge still must be successful.

[anygunanywhere]

Let's do it for voting first. After 5 years, if it's working with no problems, we can talk about guns.

Thread winner!

Anygunanywhere

[JALLEN]

This is true, but congress does not approve or disapprove each specific regulation that each department chooses to promulgate. I think the key phrase is, "as the Secretary shall prescribe." Each department proposes rules and publishes them under a NPR (Notice of Proposed Rulemaking), and there is a response time. In the end, it is the department that decides whether or not the rule is adopted. Of course rules can be challenged, but unless the challenge is successful, it remains the rule. I believe any new rule restricting 2A rights will be challenged, but in the end, the challenge still must be successful.

Is there any authority granted by Congress to any agency or department to restrict 2A rights directly? Without the grant of authority, no regulation. One key issue in each set of regs is whether they are within the scope of the authority. The agency can't just write anything it wants.

The reason Congress does this is so it won't HAVE to consider and approve every set of regulations agencies put out.

There are "no carry" regulations in parks, National Monuments, some of which have been recently relaxed, but no authority to ban possession of firearms generally or specifically. The Secretary of HUD, for example, can't ban possession of firearms in single family residence mortgaged by HUD, AFAIK. The FCC might ban advertizing of firearms and accessories on licensees but can't ban firearm ownership, directly.

[anygunanywhere]

This is true, but congress does not approve or disapprove each specific regulation that each department chooses to promulgate. I think the key phrase is, "as the Secretary shall prescribe." Each department proposes rules and publishes them under a NPR (Notice of Proposed Rulemaking), and there is a response time. In the end, it is the department that decides whether or not the rule is adopted. Of course rules can be challenged, but unless the challenge is successful, it remains the rule. I believe any new rule restricting 2A rights will be challenged, but in the end, the challenge still must be successful.

Is there any authority granted by Congress to any agency or department to restrict 2A rights directly? Without the grant of authority, no regulation. One key issue in each set of regs is whether they are within the scope of the authority. The agency can't just write anything it wants.

The reason Congress does this is so it won't HAVE to consider and approve every set of regulations agencies put out.

There are "no carry" regulations in parks, National Monuments, some of which have been recently relaxed, but no authority to ban possession of firearms generally or specifically. The Secretary of HUD, for example, can't ban possession of firearms in single family residence mortgaged by HUD, AFAIK. The FCC might ban advertizing of firearms and accessories on licensees but can't ban firearm ownership, directly.

I understand your question.

How can congress grant authority to a government agency that is in direct conflict to the Constitution and BOR?

Legally, I mean. They can pretend all they want.

Anygunanywhere

[G26ster]

This is true, but congress does not approve or disapprove each specific regulation that each department chooses to promulgate. I think the key phrase is, "as the Secretary shall prescribe." Each department proposes rules and publishes them under a NPR (Notice of Proposed Rulemaking), and there is a response time. In the end, it is the department that decides whether or not the rule is adopted. Of course rules can be challenged, but unless the challenge is successful, it remains the rule. I believe any new rule restricting 2A rights will be challenged, but in the end, the challenge still must be successful.

Is there any authority granted by Congress to any agency or department to restrict 2A rights directly? Without the grant of authority, no regulation. One key issue in each set of regs is whether they are within the scope of the authority. The agency can't just write anything it wants.

The reason Congress does this is so it won't HAVE to consider and approve every set of regulations agencies put out.

There are "no carry" regulations in parks, National Monuments, some of which have been recently relaxed, but no authority to ban possession of firearms generally or specifically. The Secretary of HUD, for example, can't ban possession of firearms in single family residence mortgaged by HUD, AFAIK. The FCC might ban advertizing of firearms and accessories on licensees but can't ban firearm ownership, directly.

I'm not addressing a total ban, but speaking of magazine capacities, weapons characteristics, etc. It would be eventually up to the SCOTUS to decide if a magazine ban was constitutional or not. Obviously, as these bans are in effect in various states already, I don't know why the SCOTUS would consider a nationwide ban any differently. There must be some authority, otherwise we would not have some of the rules that we have now. As you say, congress does not vote on each rule. It also depends on the SCOTUS interpretation (if challenged) of whether a rule IS a restriction of 2A rights. All I am saying is that IMHO restrictions can be made through rulemaking.

[JALLEN]

I understand your question.

How can congress grant authority to a government agency that is in direct conflict to the Constitution and BOR?

Legally, I mean. They can pretend all they want.

Anygunanywhere

It is not as simple as you try to make out.

Each clause of the Bill of Rights has been the subject of extensive litigation. The First Amendment, for example, "Congress shall make no law..." spawned all sorts of law, and litigation over the establishment of religion, the free exercise of religion, freedoms of speech and press, right to assemble and petition for redress. Every clause has been interpreted, limited, sometimes more than we like, sometimes not as much. It's been going on almost since the ink was dry, and will go on after we are dry. There seems to be a swing to these things, oscillation between various extremes. We swing one way, experience shows it to be unsatisfactory at least to some, another faction gains prominence and the views change back. The literal language has never been accepted as law. Justices Black, Douglas and Frankfurter, during their time on the court, took the view that "Congress shall make no law..." meant exactly that and opposed any limitation. This view has never been the law, expressed only in dissent.

The view that "shall not be infringed" means no regulation whatsoever is going to be a hard, and ultimately futile, sales pitch.

[JALLEN]

I'm not addressing a total ban, but speaking of magazine capacities, weapons characteristics, etc. It would be eventually up to the SCOTUS to decide if a magazine ban was constitutional or not. Obviously, as these bans are in effect in various states already, I don't know why the SCOTUS would consider a nationwide ban any differently. There must be some authority, otherwise we would not have some of the rules that we have now. As you say, congress does not vote on each rule. It also depends on the SCOTUS interpretation (if challenged) of whether a rule IS a restriction of 2A rights. All I am saying is that IMHO restrictions can be made through rulemaking.

I'm answering your specific assumption about rule making. A magazine ban is within Congress's authority to make under existing law. Heller. Magazine restrictions and weapons characteristics bans exist now enacted by various states, California for one. The AR-15 that many of you have would land me in prison. The ones I have are not banned by name, and have bullet buttons so as to make the magazines fixed, requiring a tool to change. Idiotic but the law here. So far, those are Constitutional. Congress had nothing to do with it, nor did any agency of the Federal government.

Congress can grant authority to an agency to consider and enact regulations about this. Only Congress can. No agency can just come in some day and say, let's have some rules. It must be authorized to do so, AFAIK, none now are so authorized.

Heller and McDonald, and the recent 7th Circuit case against Illinois's ban, suggest that the attitude likely to prevail is that total bans are an affront to the Second Amendment but "reasonable" regulations will be OK. Feinstein can argue that the California approach has been quite acceptable, not unConstitutional and ought to be enacted nationwide. It's up to the other elected Congressmen and women to refuse.

[The Annoyed Man]

Apparently anything is to be scrutinized...yes, people who lack the mental capacity to own a firearm shouldn't have one. I wasn't talking about a college level exam, something more like a safety course test. If you were born after 1976 you already have to take a class if you want to hunt legally in Texas. You can over think what I posted, but I meant what I said and do not see any infringement involved therein. It's not a registration it's a safety precaution. If you allow a guy that rode the short bus to school to own a firearm, the potential for another Sandy Hooks increases. My comments are aimed at making sure the mental health and competency are there, not any infringement upon our rights to bear arms. I also don't think all felons should not be allowed to own firearms either, I think a certain few, over the course of time should be able to regain that right. But that is a whole other argument.

When Jim Crow ruled the south, one vehicle for keeping black people out of the polling places was to have a literacy test, and then make it nearly incomprehensible to an uneducated person. Sadly, it guaranteed the disenfranchisement of the bulk of poor, rural blacks. There should never be any kinds of means testing to have access to a right......see the link I provide below.

I appreciate what you are trying to accomplish here, but it plays right into the hands of people who want to take your guns away. The 2nd Amendment places no burden on the individual citizen to prove that they are not insane (or stupid) according to some arbitrary standard, particularly when it opens that standard up for co-opting, and you know it will be anti-gun educators and psychologists who will set the standard.

Nice sentiment, very bad idea, because you're approaching it from a collectivist viewpoint. The entire Bill of Rights is non-negotiable, and applies to the individual. In fact, as this article points out, any cost benefit analysis in gun control is by definition amoral: http://www.forbes.com/sites/harrybinswa ... is-amoral/. It presumes a guilt for something not yet done. Besides, you have to answer the questions on the 4473:

Have you ever been adjucated mentally defective(which includes having been adjudicated incompetent to manage your own affairs) or have been committed to a mental institution? Yes No

That is the most you can do and still have a free society.

If you read the article above and you're still absolutely set on that idea, then you can't be trusted with ANY of my rights.

[57Coastie]

I understand your question.

How can congress grant authority to a government agency that is in direct conflict to the Constitution and BOR?

Legally, I mean. They can pretend all they want.

Anygunanywhere

It is not as simple as you try to make out.

Each clause of the Bill of Rights has been the subject of extensive litigation. The First Amendment, for example, "Congress shall make no law..." spawned all sorts of law, and litigation over the establishment of religion, the free exercise of religion, freedoms of speech and press, right to assemble and petition for redress. Every clause has been interpreted, limited, sometimes more than we like, sometimes not as much. It's been going on almost since the ink was dry, and will go on after we are dry. There seems to be a swing to these things, oscillation between various extremes. We swing one way, experience shows it to be unsatisfactory at least to some, another faction gains prominence and the views change back. The literal language has never been accepted as law. Justices Black, Douglas and Frankfurter, during their time on the court, took the view that "Congress shall make no law..." meant exactly that and opposed any limitation. This view has never been the law, expressed only in dissent.

The view that "shall not be infringed" means no regulation whatsoever is going to be a hard, and ultimately futile, sales pitch.

Once again we largely agree, Jim. I must be softening with age.

In order perhaps to bring our views somewhat back into separation, the problem, IMNSHO, Jim, is that there are those who would govern their lives by what they either think the law is, or what they think the law should be. If they disagree with the final authority, the Supreme Court of the United States of America, for example, as to what the law is, they will often continue to categorically state bad law. When others believe these categorical statements to be the truth, and rely on those statements in the conduct of their personal affairs, they may well bring serious uninvited and unintended consequences upon themselves and others.

So as to not get too far off topic, as you suggest, Jim, "shall not be infringed" is a classic example before us right now.

This deception could be so easily ameliorated if such persons would be honest enough to say "in my opinion...." occasionally. As you and I know so well, it is no accident for lawyers chatting in a forum like this to often close with boiler plate to hopefully avoid the exposure they might assume when a casual chat becomes lousy legal advice leading to someone else's harm.

I suspect we might be in agreement also, or I would hope so, when I suggest that the Administrative Procedures Act, and its counterparts in lesser jurisdictions, are not readily analyzed in a brief forum post. Volumes and volumes of materials written by credible experts have failed to do so, and the change in the law in this regard is nonstop. Seldom a day goes by when new regulations are issued, at various levels, followed by expressions of concern, the latter often coming before the courts for resolution, and even then, the resolution is often different by different courts, at least until the question gets to SCOTUS or its state counterpart.

Jim

[G26ster]

Congress can grant authority to an agency to consider and enact regulations about this. Only Congress can. No agency can just come in some day and say, let's have some rules. It must be authorized to do so, AFAIK, none now are so authorized.

I guess there's two things at play here. First, I am debating a legal professional, whose opinions and posts I respect and enjoy, and I am ill equipped/trained/experienced to debate . And second, I have no idea what rules/regulations concerning firearms congress has authorized the DOJ/BATFE to make.
Obviously, as you said they can "consider and enact regulations." where does one find the specifics about which rules the agency can or cannot make?

The mission statement of the agency whose rules I worked under was, safety of the public. The BATFE mission statement is protection of communities. If the agency whose rules I worked under proposed a rule, it would be for public safety. I don't see that as much different than if the BATFE proposed a rule in the interest of protecting communities.

Once again, I'm not addressing an all out assault of the 2A. I am addressing the slow erosion of the 2A through regulation. If I'm wrong, I'm wrong, but in the end regardless of whether the congress acts through lawmaking or an agency acts through rulemaking, it will be the decision of the SCOTUS that determines whether it stands or not. Just MHO.

[tommyg]

A lot of PSYCHOS go to the trouble of learning about Psychology. A little reading up
on Psychology will give a nut enough knowledge to pass a test and get a gun.
All a psy test will do is add a stop at the local library before getting a gun with intent to harm others.
Sadly most of the senseless shootings are planned in advance

Please forget any foolish Ideas more honest people going armed is the best way to stop a shooting

[JALLEN]

I guess there's two things at play here. First, I am debating a legal professional, whose opinions and posts I respect and enjoy, and I am ill equipped/trained/experienced to debate . And second, I have no idea what rules/regulations concerning firearms congress has authorized the DOJ/BATFE to make.
Obviously, as you said they can "consider and enact regulations." where does one find the specifics about which rules the agency can or cannot make?

The mission statement of the agency whose rules I worked under was, safety of the public. The BATFE mission statement is protection of communities. If the agency whose rules I worked under proposed a rule, it would be for public safety. I don't see that as much different than if the BATFE proposed a rule in the interest of protecting communities.

Once again, I'm not addressing an all out assault of the 2A. I am addressing the slow erosion of the 2A through regulation. If I'm wrong, I'm wrong, but in the end regardless of whether the congress acts through lawmaking or an agency acts through rulemaking, it will be the decision of the SCOTUS that determines whether it stands or not. Just MHO.

I didn't really consider this debating, actually, more like explaining, sharing what I know from "working at the sausage factory," so to speak, etc with someone whose training and experience is in a different realm. The answer about your agency will be found in specific statute(s) authorizing that agency, and any subsequent expanding or further granting of authority. Usually, any rule-making will state what the authority source is. "Purusant to xx USCode yyyy, the Secretary finds that blah, blah, blah..."

In our scheme of things, it is the Supremes who decide on constitutionality, either directly, or by ruling in a case that is controlling precedence. For example, after Heller, the jurisdictions that had bans on firearms similar in scope ought to have reviewed their rules and made necessary changes. Prosecutions based on those rules would be in jeopardy. An example is the Miranda ruling after which police agencies had to start advising of rights.

[JALLEN]

Once again we largely agree, Jim. I must be softening with age.

I think it might seem that way because we have both worked at a sausage factory and have some understanding of how laws and regulations are made. As to the wisdom or propriety or political attractiveness of many of these laws, I'm sure we are on opposite sides. No matter. As my baby sister often says, "You can agree with me, or you can be wrong!"

I tend to be of the Justice Black/Douglas/Frankfurter view that "Congress shall make no law..." means exactly that. Similarly, "... shall not be infringed.." is pretty plain to me, no matter what ills are claimed to flow therefrom, but I started out believing that the only proper function of government was building libraries and roads to get to them. Well, and debauching the currency, of course. Trouble is we have all these meddlers constantly causing problems and dreaming up imagined ills to solve, interfering with freedom.

[G26ster]

I didn't really consider this debating, actually, more like explaining, sharing what I know from "working at the sausage factory," so to speak, etc with someone whose training and experience is in a different realm. The answer about your agency will be found in specific statute(s) authorizing that agency, and any subsequent expanding or further granting of authority. Usually, any rule-making will state what the authority source is. "Purusant to xx USCode yyyy, the Secretary finds that blah, blah, blah..."

In our scheme of things, it is the Supremes who decide on constitutionality, either directly, or by ruling in a case that is controlling precedence. For example, after Heller, the jurisdictions that had bans on firearms similar in scope ought to have reviewed their rules and made necessary changes. Prosecutions based on those rules would be in jeopardy. An example is the Miranda ruling after which police agencies had to start advising of rights.

Ah yes, as I've been retired a while, I had forgotten that NPRMs do include the sections of the US Code that gives authority to make rules in a particular section of the code (which must be documented in the NPRM). That said, I have no idea which title of the US Code governs the DOJ/ATF, but what I believe is that an agency under the Executive Branch can weasel-word a rule that can be made to fit under a congressional authorization if it meets an end. The EPA is a great example. I may be all wet in my thinking, but I do thank you for the reminder/education.

Edit to add from the Washington Post, January 5, 2013

Seeking expansive mandate

"In addition to potential legislative proposals, Biden’s group has expanded its focus to include measures that would not need congressional approval and could be quickly implemented by executive action, according to interest-group leaders who have discussed options with Biden and key Cabinet secretaries. Possibilities include changes to federal mental-health programs and modernization of gun-tracking efforts by the Bureau of Alcohol, Tobacco, Firearms and Explosives."

[G.A. Heath]

Concession: "We plan to ban semi-autos and any magazine that holds more than 10 rounds, but if you don't fight it we will only take the magazine portion."
Compromise "So your saying we can have the semi-auto rifle ban but you get to have full auto firearms capable of semi-auto fire with no NFA provisions required?"

Not that I support either position (I want it to be all concessions from them to us) but that is the difference between concession and compromise.